Miller determined innocent, yet still in prison

Story first appeared on USA Today -

Even the federal prosecutors who put Gordon Lee Miller in prison couldn't get him out

U.S. Justice Department lawyers took the unusual step in December of asking a federal judge to throw out Miller's conviction and free him because, they said, he had not actually broken the law.

The judge's answer was still more unusual: No.

The judge's ruling against Miller is among the latest in a handful of court decisions blocking, at least temporarily, efforts by defense lawyers and prosecutors to overturn convictions in hundreds of cases in which the Justice Department agrees that people were sent to prison improperly because of a misunderstanding of federal law. The decisions raise for the first time the prospect that scores of prisoners still waiting for courts to decide their cases might remain locked up.

"It's very frustrating," said Chris Brook, legal director of the ACLU of North Carolina. "These are cases where everybody is on the same page. The government and the defense agree. The only one standing in the way is the judge."

Miller finished his prison sentence while the case was pending; he faces three years of supervised release.

The legal dispute stems from a misunderstanding about which North Carolina state convictions were serious enough to make having a gun a federal crime. A USA TODAY investigation last year identified 60 people who had been sent to prison on gun charges even though an appeals court later determined that it was not illegal for them to have a gun. The Justice Department had initially asked courts to keep the prisoners locked up anyway, but dropped that position last year "in the interests of justice," and is now asking courts to let them out.

In response, judges have freed 34 people and taken at least 16 others off supervised release, court records show. A Justice Department review last year identified 175 others in the smallest of the state's three judicial districts who should be freed or have their prison sentences reduced.

But this month, U.S. District Judge Robert Conrad in Charlotte turned down petitions by Miller and another man seeking to have their convictions overturned, even though prosecutors said in court filings that they were "convicted for conduct that we now understand is not criminal." Another judge, Martin Reidinger, has expressed skepticism that he can free five other men and has asked for additional filings from lawyers on both sides before he makes a decision.

Justice Department spokeswoman Allison Price declined to comment on the specifics of those cases, saying, "We respect the court's decision." The department has until next week to respond to Reidinger.

Conrad, the former chief federal prosecutor in Charlotte, said in a Feb. 15 order that he could not upend Miller's conviction. Miller, he wrote, was "lawfully sentenced under then-existing law," and an appeals court's 2011 decision that changed that understanding of the law did not apply to cases that were already concluded.

Miller's lawyers, who declined to comment, have appealed Conrad's order. If the 4th Circuit Court of Appeals upholds the decision, it could effectively block other judges from overturning convictions in similar cases that are still pending in federal courts throughout North Carolina.